Zhao v Police - [2014] NZHC 1328

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-301 [2014] NZHC 1328

BETWEEN
XI MENG ZHAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 February 2014

Appearances:

N K McDonald for Appellant
J B Hamlin for Respondent

Judgment:

13 June 2014

JUDGMENT OF KEANE J

This judgment was delivered by me on 13 June 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Oranga Law, Auckland
Crown Solicitor, Auckland

ZHAO v POLICE [2014] NZHC 1328 [13 June 2014]

[1] On 14 October 2013, after a defended hearing in the District Court, Auckland, Xi Meng Zhao was convicted of driving on 24 January 2013 with an excess breath alcohol level, 776 micrograms. She was fined $750 and disqualified for six months.

[2] Ms Zhao appeals her conviction on the single ground that the Judge, Judge C J Field, was wrong to hold that the constable, who administered the positive evidential breath test to her, advised her without delay afterwards of her right to elect to have a blood sample taken instead of accepting the breath test result as conclusive.

[3] On that ground, Ms Zhao contends, therefore, the Judge was wrong to hold the positive breath test result to be admissible against her to prove the offence of which he convicted her.

Prosecution evidence

[4] At 7.23 pm, according to the record he kept relying on his cell phone, Constable Le’Au attended a motor accident at the intersection of Epsom Avenue and Manukau Road, Auckland. He spoke to one of the drivers, who told him that the other driver, Ms Zhao, had caused the accident and was being treated in the ambulance already there.

[5] At 7.42 pm, after Ms Zhao had received attention and had been found uninjured, the constable required her to undergo a breath screening test. According to his notes made shortly after at the police station, Ms Zhou’s speech was slurred, her eyes bloodshot, she smelled of alcohol, and she admitted that she had just had a bottle of wine at a Greenlane restaurant.

[6] At 7.43 pm the constable required Ms Zhao to accompany him to the Mt Wellington police station for an evidential breath test, blood test, or both, and advised her of her NZBORA rights. However, because he was the only officer at the accident, they had to wait until other officers arrived; a delay not in issue on this appeal.

[7] At the Mt Wellington police station the constable began to fill out the standard breath and blood alcohol procedure check sheet. He then advised Ms Zhao a second time of her NZBORA rights and, at 8.13 pm, had her sign the advice form to confirm that she understood what he had explained to her. She said that she did not wish to speak to a lawyer.

[8] At 8.14 pm the constable required Ms Zhao to undergo an evidential breath test. Ms Zhao proved incapable and the result was an incomplete test. The constable asked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1328
Decision Date: 13 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Xi Meng Zhao appealed against her conviction of driving with an excess breath alcohol level, which had been determined by a positive evidential breath test. The appeal centred on whether the police officer who administered the breath test complied with statutory requirements by advising Zhao of her right to request a blood sample without delay after the test result was ascertained. Zhao argued that the officer's time records were unreliable and that there was a delay in advising her of her right to elect for a blood sample, rendering the breath test result inadmissible.

The court considered the statutory provisions and relevant case law, focusing on the requirement for the officer to advise the motorist without delay of the positive breath test result and the right to request a blood sample. The court noted that the statutory purpose was to protect the motorist against errors in the breath test. The prosecution argued that the officer's recorded times were accurate and that there was no delay, while Zhao's counsel contended that the discrepancies between the officer's times and the device times indicated a delay.

The court found that the discrepancies in the officer's time records, while present, were not so significant as to render the times unreliable. The court accepted that the officer's recorded times were close to the actual times, and thus, the officer had complied with the statutory requirement to advise Zhao without delay of her right to request a blood sample. Consequently, the court dismissed the appeal, upholding the conviction.

Orders